Johnson & Johnson’s Risky Tactic Fails in Patent Fight

Tuesday

Sep 25, 2007 at 12:01 AM

The company’s lawyers had attempted to gain the upper hand in a patent case by highlighting safety concerns about the company’s own product.

Johnson & Johnson was rebuffed yesterday in an attempt to gain the upper hand in a patent case in which its lawyers tried a high-risk tactic: highlighting safety concerns about the company’s own product.

The lawyers hoped to persuade a federal judge in Delaware that because Johnson & Johnson’s drug-coated Cypher stent had been linked in clinical studies to blood clots, it fell outside the safety profile of a Boston Scientific patent.

That position appeared to contradict Johnson & Johnson’s repeated assertions in its communications with doctors and the public in the past year that Cypher is no more likely to induce clots than older bare-metal stents.

And it did the company no good. Judge Sue L. Robinson refused to throw out a jury verdict that the Cypher, made by the Johnson & Johnson subsidiary Cordis, infringed on a Boston Scientific patent covering drug coatings. She also upheld a jury verdict against Johnson & Johnson in a separate patent case involving the design of the underlying metal stent.

The Johnson & Johnson motion reflected the complexity of the legal maneuvering the companies have tried after back-to-back jury trials two years ago left them in a legal standoff. The juries decided that each company had infringed patents owned by the other.

Follow-up trials in which potential damages were to be weighed have been postponed while the two companies sought to overturn the infringement verdicts. Judge Robinson made all the verdicts final yesterday. Both companies said last night that they would now proceed to appeal the verdicts against them to the United States Court of Appeals for the Federal Circuit in Washington.

In the motion related to drug coatings on which Judge Robinson ruled yesterday, the goal of the Johnson & Johnson lawyers was clear enough — the Boston Scientific patent covers stents with a “non-thrombogenic” coating, that is, a coating that does not cause clots. Thus, evidence that Cypher has a significant clotting problem might suggest it does not infringe on the patent.

Judge Robinson’s ruling noted that while federal regulators had been concerned about studies showing potential medical risks in using Cypher and the Taxus stent from Boston Scientific, the only drug-coated stents on the American market, they had also concluded that it was not clear whether the drug-coating or some other aspect of the devices was at fault.

The judge said the evidence cited by Johnson & Johnson’s lawyers was “too speculative” for her to dismiss Boston Scientific’s patent claim or order a new trial into whether Johnson & Johnson infringed it.